The employer’s “reasonable steps” defence

An employer is not liable for unlawful acts committed by an employee if the employer can show it took “all reasonable steps” to prevent the employee acting unlawfully (Section 109(4) EA 2010).

To rely successfully on this defence, an employer must be able to point to steps taken before the harassment or discrimination took place. Steps taken afterwards, such as investigating the complaint and dismissing the offender, will not help an employer build this defence.

In other words, the only practical way for an employer to be protected from a disability discrimination claim is by behaving proactively to cultivate and maintain an organisational climate in which all workers are respected and discrimination and harassment is not tolerated.

What is reasonable obviously depends on individual circumstances, but reasonable steps could include devising and implementing an effective equality policy which:

• can give job applicants and workers confidence that they will be treated with dignity and respect;

• can set the minimum standards of behaviour expected of all workers and outline what workers and job applicants can expect from the employer;

• is key to helping employers and others comply with their legal obligations;

• can minimise the risk of legal action being taken against employers and workers; and/or

• if legal action is taken, employers may use the equality policy to demonstrate to an employment tribunal that they take discrimination seriously and have taken all reasonable steps to prevent discrimination.